(A.M. Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ.)
Kunjumuhammed and Another ____________________ Appellant(s);
v.
Mariyumma ____________________________________ Respondent.
Civil Appeal No. 2771 of 2020 [Arising out of SLP(C) No. 22424 of 2017], decided on July 17, 2020
The Order of the court was delivered by
Order
1. Leave granted.
2. This appeal takes exception to the judgment and order dated 31.01.2017 passed by the High Court of Kerala at Ernakulam in Second Appeal No. 209 of 2003, whereby the High Court allowed the Second Appeal without formulating substantial question of law.
3. After having heard learned counsel for the parties and noticing the fact stated in paragraph 4 of the impugned order, it is apparent that no substantial question of law was formulated and the appeal was placed for consideration before the Court on the basis of question of law in the memorandum of appeal. The Court ought to have formulated substantial question of law and proceeded with the arguments thereafter. A mere mention about the question having been formulated in the memorandum of appeal is not enough. That is not in accord with the settled law. It is possible that more than one question of law had been formulated in the appeal memo, as substantial question of law. The Court ought to advert to the question which it thinks appropriate to examine and then answer the same, as is mandated in terms of the settled legal position, including in Bokka Subba Rao v. Kukkala Balakrishna (2008) 3 SCC 99.
4. Accordingly, we set aside the impugned order and relegate the parties before the High Court for reconsideration of the Second Appeal on its own merits and in accordance with law.
5. All contentions available to the parties are left open, to be decided on its own merits.
6. We request the High Court to take up the Second Appeal for hearing expeditiously.
7. The civil appeal is disposed of accordingly.
8. Pending applications, if any, stand disposed of.
Petition(s) for Special Leave to Appeal (C) No(s). 22424/2017
Kunjumuhammed & Anr __________________________ Petitioner(s)
v.
Mariyumma ______________________________________ Respondent
(ONLY I.A NO. 60401/2020 AND 60403/20 TO BE LISTED
IA No. 60401/2020 – CLARIFICATION/DIRECTION
IA No. 60403/2020 – EXEMPTION FROM FILING O.T.)
Date : 17-07-2020 These matters were called on for hearing today.
(Before A.M. Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ.)
For Petitioner(s) Mr. V. Giri, Sr. Adv.
Mr. K. Parameshwar, AOR
Mr. M.V. Mukunda, Adv.
For Respondent(s) Mr. Gaurav Agrawal, Adv.
Mr. Mohammed Sadique T.A., AOR
UPON hearing the counsel the Court made the following
ORDER
9. Leave granted.
10. The Civil Appeal is disposed of in terms of the signed order.
11. Pending applications, if any, stand disposed of.
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